Monday, November 16, 2009

John Yoo on trial of KSM: an intelligence bonanza for Al Qaeda

John Yoo was an official in the Justice Dept from 2001-2003. He made recommendations regarding what constituted torture vs. what constituted legal interrogation. For this, he is, still, reviled by lefties who want him prosecuted for committing war crimes. Yoo:

"For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges."

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"The Supreme Court has upheld the use of [military] commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009."

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Patterico: KSM's trial is a show trial. Under no circumstances does KSM ever go free. That is not justice.

Glenn Greenwald is exactly right about this. He notes that Obama and Holder are determining what sort of process detainees get, not based on what is legally required, but rather based on whether the government can win:

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.

If the government is choosing the forum and mode of your trial based on where it thinks it can win, it is rigging the outcome. If the government is unwilling to accept a bad outcome to your trial, your trial is a show trial.

Under these criteria, Obama’s decision to try KSM in federal court is a clear example of a show trial.

[...]

In his press conference, Eric Holder went off script and inadvertently confirmed this, when asked how he could assure family members of 9/11 victims that the plotters would not be released on a technicality:

I am quite confident that we’re going to be successful in the prosecution efforts.

If I was concerned about the forum not leading to a positive result or if I had a concern — a different concern, you know, we would perhaps be in a different place.

A questioner picked up on Holder’s suggestion, asking how it could be fair or legal “if you’re picking different forums for different defendants based on where you can be sure that the outcome will be a conviction.” And then Holder readjusted the mask he had just let slip, and said that of course he wasn’t doing that.

This statement of Holder’s is completely consistent with Obama’s May remarks in which he stated that dangerous people “who cannot be prosecuted for past crimes” will not be released.

The American people need to understand: Obama is not giving KSM a trial because he believes it’s the right thing to do. He is giving a trial to KSM only because he believes that a conviction seems certain — and if for some reason the government turns out to be wrong about that, KSM is going to be held anyway.